Righthaven learning it can’t change the facts after it sues

When Righthaven sued a blogger last year, it had no standing to do, so the …

Like a leech—or perhaps a tick—the copyright lawyers at Righthaven latch on tight and don't let go, even as their cases have begun to crumble around them. Instead, they're doubling down on their lawsuit strategy against individual bloggers who repost an article or two.

Case in point: a lawsuit against one Dean Mostofi, who kept a small website with news and commentary about home foreclosures around the US. Mostofi appears to have copied a Las Vegas Review-Journal article on foreclosures and posted it to his site in full; Righthaven sued him for it back on June 30, 2010.

Yesterday, a federal judge tossed the case. This has been a pattern of late; Righthaven's agreement with the Review-Journal's owner didn't actually assign the story copyright to Righthaven, instead granting a bare right to sue over the story. But such a right doesn't exist, and only the copyright holder or exclusive licensee can bring a suit.

"Since the right to sue is not one of the exclusive rights [under copyright law], transfer solely of the right to sue does not confer standing on the assignee," wrote Judge Kent Dawson of Nevada.

But Righthaven resorted to an odd tactic: fixing its agreement with the newspaper and trying to tell the court that this fix applied retroactively. "Yes, Righthaven did have standing to file suit in 2010 because of this thing we did in 2011!"

If this sounds dubious to you, you aren't alone. Here's how Judge Dawson put it: "This amendment, however, cannot create standing because '[t]he existence of federal jurisdiction ordinarily depends on the facts as they exist when the complaint was filed.'" He went on to offer a basic lesson in amending court filings:

As an example, a party who misstates his domicile may amend to correctly state it. This is an amendment of the allegation. However, that party is not permitted to subsequently move in order to change his domicile and amend accordingly. This would be an amendment of the jurisdictional facts, which is not allowed. Here, Plaintiff and [Review-Journal owner] Stephens Media attempt to impermissibly amend the facts to manufacture standing.

Case dismissed. So everything's copacetic for Dean Mostofi, right? Not quite. Hours after the case was dismissed, Righthaven filed a brand new lawsuit against him over the same charge, on the grounds that this time, the amended operating agreement with Stephens Media is in force and gives Righthaven standing.

After numerous dismissals and stern comments from federal judges on two states, and after Righthaven has to start paying out legal fees to those it sued, and after some spectacular "fair use" losses, it started to look like the company was on its way to the mat. But as the Mostofi case shows, there's a bit of fight in the reeling boxer yet.